Crimes Under International Criminal Law in Gloablized World

  • Udya Raghavan
  • Show Author Details
  • Udya Raghavan

    Research Scholar at LNCT University, Bhopal, India

Abstract

Criminal Law is a body of International law designed to prohibit certain categories of conduct commonly viewed as serious atrocities and to make perpetrators of such conduct criminally accountable for their perpetration. Principally, it deals with genocide, war crimes, crimes against humanity, as well as the crime of aggression. This article also discusses crimes against international law, which may not be part of the body of international criminal law. "Classical" international law governs the relationships, rights, and responsibilities of states. Criminal law generally deals with prohibitions addressed to individuals, and penal sanctions for violation of those prohibition imposed by individual states. International criminal law comprises elements of both in that although its sources are those of international law, its consequences are penal sanctions imposed on individuals. Some precedents in international criminal law can be found in the time before World War I. However, it was only after the war that a truly international crime tribunal was envisaged to try perpetrators of crimes committed in this period. Thus, the Treaty of Versailles stated that an international tribunal was to be set up to try Wilhelm II of Germany. In the event however, the Kaiser was granted asylum in the Netherlands. After World War II, the Allied powers set up an international tribunal to try not only war crimes, but crimes against humanity committed under the Nazi regime. The Nuremberg Tribunal held its first session in 1945 and pronounced judgments on 30 September / 1 October 1946. A similar tribunal was established for Japanese war crimes (The International Military Tribunal for the Far East). It operated from 1946 to 1948.

Type

Research Paper

Information

International Journal of Law Managment and Humanities,
Volume 4, Issue 2, Page 2494 - 2506

DOI: http://doi.one/10.1732/IJLMH.26544

Creative Commons

This is an Open Access article, distributed under the terms of the Creative Commons Attribution licence (http://creativecommons.org/licenses/by/4.0/), which permits unrestricted re-use, distribution, and reproduction in any medium, provided the original work is properly cited.

Copyright

Copyright © IJLMH 2021

I. Introduction

After the beginning of the war in Bosnia, the United Nations Security Council established the International Criminal Tribunal for the Former Yugoslavia (ICTY) in 1993 and, after the genocide in Rwanda, the International Criminal Tribunal for Rwanda in 1994. The International Law Commission had commenced preparatory work for the establishment of a permanent International Criminal Court in 1993; in 1998, at a Diplomatic Conference in Rome, the Rome Statute establishing the ICC was signed. The ICC issued its first arrest warrants in 2005.

II. Sources of international criminal law

International criminal law is a subset of international law. As such, its sources are the same as those that comprise international law. The classical enumeration of those sources is in Article 38(1) of the 1946 Statute of the International Court of Justice and comprise: treaties, customary international law, general principles of law (and as a subsidiary measure judicial decisions and the most highly qualified juristic writings). The ICC statute contains an analogous, though not identical, set of sources that the ICC may rely on. The prosecution of severe international crimes—including genocide, crimes against humanity, and war crimes—is necessary to enforce international criminal law and deliver justice to victims. This is an important component of transitional justice, or the process of transforming societies into rights-respecting democracies and addressing past human rights violations. Investigations and trials of leaders who have committed crimes and caused mass political or military atrocities is a key demand of victims of human rights abuses. Prosecution of such criminals can play a key role in restoring dignity to victims, and restoring trusting relationships in society. The International Criminal Court, as described below, can play an important role in prosecuting international crimes in cases where domestic courts are unwilling or unable to do so.

(A) International law as a global issue:

The development of International Law is one of the primary goals of the United Nations. The Charter of the United Nations, in its Preamble, sets the objective “to establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained”[2]. International Law defines the legal responsibilities of States in their conduct with each other, and their treatment of individuals within State boundaries. Its domain encompasses a wide range of issues of international concern such as human rights, disarmament, international crime, refugees, migration, problems of nationality, the treatment of prisoners, the use of force, and the conduct of war, among others. It also regulates the global commons, such as the environment, sustainable development, international waters, outer space, global communications and world trade. More than 500 multilateral treaties have been deposited with the Secretary-General of the United Nations. Many other treaties are deposited with governments or other entities.

The General Assembly is the main deliberative body of the United Nations. Many multilateral treaties are adopted by it and subsequently opened for signature and ratification by member States of the United Nations. The General Assembly has adopted a number of multilateral treaties throughout its history, including:

  • Convention on the Prevention and Punishment of the Crime of Genocide (1948)
  • International Convention on the Elimination of All Forms of Racial Discrimination (1965)
  • International Covenant on Civil and Political Rights (1966)
  • International Covenant on Economic, Social and Cultural Rights (1966)
  • Convention on the Elimination of All Forms of Discrimination against Women (1979)
  • United Nations Convention on the Law of the Sea (1982)
  • Convention on the Rights of the Child (1989)
  • Comprehensive Nuclear-Test-Ban Treaty (1996)
  • International Convention for the Suppression of the Financing of Terrorism (1999)
  • Convention on the Rights of Persons with Disabilities (2006)

The Legal (Sixth) Committee is the primary forum for the consideration of legal questions in the General Assembly. Many international instruments, including a number of international treaties have been adopted by the General Assembly on the basis of the recommendation of the Committee.

The International Law Commission was established by the General Assembly in 1948 with a mandate to undertake the progressive development and codification of international law under article 13(1)(a) of the Charter of the United Nations. As an expert legal body, its task is to prepare draft conventions on subjects, which have not yet been regulated by international law and to codify rules of international law in fields, where there already has been extensive State practice. The Commission’s work in criminal law led to the adoption of the Statute of the International Criminal Court. It also drafted the Vienna Convention on Diplomatic Relations (1961) and the Vienna Convention on the Law of Treaties (1969), among others.

In the 1990s, after the end of the Cold War, tribunals such as the International Criminal Tribunals for the former Yugoslavia (ICTY) and for Rwanda (ICTR) were established to fight impunity by trying crimes committed within a specific time-frame and during a specific conflict. In 2010, the UN Security Council created the Mechanism for International Criminal Tribunals (MICT) to carry out a number of essential functions of the two ad hoc tribunals after the completion of their respective mandates. The Arusha, Tanzania branch of MICT started functioning in July 2012, while the branch located in The Hague, Netherlands will take over from the ICTY in July 2013. In 1998, the international community reached an historic milestone when 120 States adopted the Rome Statute, the legal basis for establishing the permanent International Criminal Court (ICC).

The ICC is an independent international organization, and is not part of the United Nations system. Its seat is at The Hague in the Netherlands. 17 cases in 7 situations have been brought before the International Criminal Court. Cases are referred to the Court by states parties, by the UN Security Council or on the initiative of the Court’s Prosecutor. To date, there have been three state referrals from the governments of the Democratic Republic of Congo, Uganda, and the Central African Republic, and two referrals from the United Nations Security Council regarding the situation in Darfur and the situation in Libya.[3]

(B) Uphold international law

The UN Charter, in its Preamble, set an objective: “to establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained”. Ever since, the development of, and respect for international law has been a key part of the work of the Organization. This work is carried out in many ways – by courts, tribunals, multilateral treaties – and by the Security Council, which can approve peacekeeping missions, impose sanctions, or authorize the use of force when there is a threat to international peace and security, if it deems this necessary. These powers are given to it by the UN Charter, which is considered an international treaty. As such, it is an instrument of international law, and UN Member States are bound by it. The UN Charter codifies the major principles of international relations, from sovereign equality of States to the prohibition of the use of force in international relations.

(C) Settling Disputes between States

1. International Court of Justice

The principal judicial organ of the United Nations is the International Court of Justice (ICJ).

This main body of the UN settles legal disputes submitted to it by States in accordance with international law. It also gives advisory opinions on legal questions referred to it from authorized UN organs and specialized agencies. The Court is composed of 15 judges, who are elected for terms of nine years by the General Assembly and the Security Council.

2. Courts and Tribunals

In addition to the International Court of Justice, a wide variety of international courts, international tribunals,ad hoc tribunals and UN-assisted tribunals have varying degrees of relation to the United Nations (such as the tribunals for the former Yugoslavia and Rwanda, the Special Court for Sierra Leone, the Extraordinary Chambers in the Courts of Cambodia and the Special Tribunal for Lebanon). These are established by (and are Subsidiary Organs of) the Security Council. The International Criminal Court (ICC) and International Tribunal for the Law of the Sea (ITLOS), were established by conventions drafted within the UN, but are now independent entities with special cooperation agreements.

3. What Is International Law?

International law defines the legal responsibilities of States in their conduct with each other, and their treatment of individuals within State boundaries. Its domain encompasses a wide range of issues of international concern, such as human rights, disarmament, international crime, refugees, migration, problems of nationality, the treatment of prisoners, the use of force, and the conduct of war, among others. It also regulates the global commons, such as the environment and sustainable development, international waters, outer space, global communications and world trade.

4. The Security Council and International Law

Some of the action of the Security Council have international law implications, such as those related to peacekeeping missions, ad hoc tribunals, sanctions, and resolutions adopted under Chapter VII of the Charter. In accordance with Article 13(b) of the Rome Statute, the Security Council can refer certain situations to the Prosecutor of the International Criminal Court (ICC), if it appears international crimes (such as genocide, crimes against humanity, war crimes, the crime of aggression) have been committed.

5. The General Assembly and International Law

The UN Charter gives the General Assembly the power to initiate studies and make recommendations to promote the development and codification of international law. Many subsidiary bodies of the General Assembly consider specific areas of international law and report to the plenary. Most legal matters are referred the Sixth Committee, which then reports to the plenary. The International Law Commission and the UN Commission on International Trade Law report to the General Assembly. The General Assembly also considers topics related to the institutional law of the United Nations, such as the adoption of the Staff Regulations and the establishment of the system of internal justice.

6. General Assembly – Sixth Committee (Legal)

The General Assembly’s Sixth Committee is the primary forum for the consideration of legal questions in the General Assembly. All UN Member States are entitled to representation on the Sixth Committee as one of the main committees of the General Assembly.

7. International Law Commission

The International Law Commission promotes the progressive development of international law and its codification. The Commission’s work on a topic usually involves some aspects of the progressive development, as well as the codification of international law, with the balance between the two varying depending on the particular topic.

8. United Nations Commission on International Trade Law (UNCITRAL)

The United Nations Commission on International Trade Law is a core legal body of the United Nations system in the field of international trade law, with universal membership, specializing in commercial law, with a focus on the modernization and harmonization of rules on international business. The UNCITRAL Secretariat has established a Case Law on UNCITRAL texts (CLOUT) system for collecting and disseminating information on court decisions and arbitral awards relating to the Conventions and Model Laws that have emanated from the work of the Commission.

9. The UN Convention on the Law of the Sea

The United Nations Convention on the Law of the Sea lays down a comprehensive regime of law and order in the world’s oceans and seas, establishing rules governing all uses of the oceans and their resources. The Division for Ocean Affairs and the Law of the Sea (DOALOS) of the Office of Legal Affairs of the United Nations serves as the secretariat of the Convention on the Law of the Sea.

10. UN Treaty Database

The Status of Multilaterial Treaties Deposited with the Secretary-General online database provides the most detailed information on the status of over 560 major multilateral instruments deposited with the Secretary-General of the United Nations and covers a range of subject matters, such as Human Rights, Disarmament, Commodities, Refugees, the Environment, and the Law of the Sea. This database reflects the status of these instruments, as Member States sign, ratify, accede to, or lodge declarations, reservations or objections.

11. The Internal Justice System at the United Nations

A new Internal Justice System for the United Nations was introduced in 2009, with the goal of having a system that was independent, professionalized, expedient, transparent and decentralized, with a stronger emphasis on resolving disputes through informal means, before resorting to formal litigation. Because the United Nations has immunity from local jurisdiction and cannot be sued in a national court, the Organization has set up an internal justice system to resolve staff-management disputes, including those that involve disciplinary action.

12. Legal Resources and Training

The historic archives at the Audiovisual Library of International Law provide a unique resource for the teaching, studying and researching significant legal instruments on international law.

13. Legal Technical Assistance for UN Member States

The United Nations currently offers Member States technical assistance in connection with a range of legal matters. Such assistance includes the provision of advice, expertise, research, analysis, training or other assistance.

14. Programme of Assistance for International Law

The Programme of Assistance in the Teaching, Study, Dissemination and Wider Appreciation of International Law is meant to contribute to a better knowledge of international law “as a means for strengthening international peace and security and promoting friendly relations and co-operation among States.” It is one of the cornerstones of the efforts of the United Nations to promote international law.

(D) Crimes under International Criminal Law

  1. Crimes against humanity

Although it is among the major international crimes, “crimes against humanity” remains undefined in legal scholarship and authoritative commentary. The definition of the crimes against humanity varies from one statute to another. The history of the development of these crimes may be an explanation for this uncertainty. Martens Clause of the Hague Convention of 1907 was the first time that laws of humanity were recognized in conventional international law. Then, following the World War II, from 26 June to 8 August 1945, a conference was held by victorious allied powers in London in order to draft the Charter of the International Military Tribunal (Hereinafter IMT), to punish Nazi atrocities. Also known as the Nuremberg Charter. The IMT Charter defined crimes against humanity as: “murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war, or persecutions on political, racial, or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated.” The second international instrument including a provision of crimes against humanity was Control Council Law No. 10 (CCL No. 10) of 1945, the major importance of which is the abolition of the war nexus requirement that meant the acts be connected with war to be punishable.

CCL No. 10 defined crimes against humanity as: “atrocities or offenses, including but not limited to murder, extermination, enslavement, deportation, imprisonment, torture, rape, or other inhumane acts committed against any civilian population, or persecutions on political, racial or religious grounds whether or not in violation of the domestic laws of the country where perpetrated.” Since the Nuremberg Charter and CCL No 10, a significant number of instruments that include various definitions of crimes against humanity have been adopted. But 1948 Convention on the Prevention and Punishment of the Crime of Genocide (hereinafter Genocide Convention) is definitely the most important one among others[4].

More recently, the statutes of the International Criminal Tribunal for the Former Yugoslavia (hereinafter ICTY) and International Criminal Tribunal for Rwanda (hereinafter ICTR) emerged after serious offences, representing important provisions on. However the differences between the statutes of these two caused uncertainties within the international community about the elements of crimes against humanity, the definitions of crimes against humanity under these statutes reflect major developments in international law since the Nuremberg Trials. Unlike the crime of genocide , this category of crimes did not have a specific international convention. But it was again, included within Rome Statute of the International Criminal Court (hereinafter referred as Rome Statute) which was adopted on 17 July 1998. The definition of crimes against humanity was criticized as too narrow by some NGOs.

  1. Genocide

Genocide term was coined in legal terminology in 1944, by Raphael Lemkin in his book ‘Axis Rule in Occupied Europe: Laws of Occupation, Analysis of Government, Proposal for Redress’ that was written about Nazi crimes in Europe during World War II.10 Being within the context of crimes against humanity, genocide as a term in international law instruments first appeared in the judgment of several cases dealt with under Control Council Law No. 1011, beginning with Justice Case. In this judgment, genocide was described as “the prime illustration of a crime against humanity”. It should be remembered that, at that time, the crime of genocide was, and, in contrast to the Genocide Convention, crimes against humanity could only be committed in association with an international armed conflict.

Genocide, including the intentional killing, destruction, or extermination of groups or members of a group as such, was first assessed to be purely a sub-category of crimes against humanity”. The solid definition of genocide is the one set forth in the Genocide Convention in 1948, which defines genocide as one of five types of acts committed with the special intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such. By means of this Convention, genocide acquired independent importance as a specific crime. The context of genocide in 1948 Genocide Convention was narrower than both that of crimes against humanity and then context of genocide expressed by Lemkin. However, clarifying the conception of crime of genocide, Articles II and III of the Genocide Convention were reproduced in a verbatim form in Article 4 of ICTY Statute and Article 2 of ICTR Statute. Under Article 4 of the ICTY, genocide refers to any criminal activity aiming to destroy, in whole or in part, a particular human group, as such, by certain means. Those are two elements of the special intent requirement of genocide: (1) the act or acts must target a national, ethnical, racial or religious group; (2) the act or acts must seek to destroy all or part of that group”. Under Article 2 of ICTR Statute, the Chamber of ICTR concluded that a crime has to

be if any of the acts listed under Article 2(2) of the ICTR Statute was committed and, if only this act was committed with the specific intent to destroy a specifically targeted national, ethnical, racial or religious group, , in whole or in part. For this reason, an act in order to be punished under ‘genocide’ provisions must contain both the prohibited underlying act and the specific genocidal intent (dolus specialis). The crime of genocide is considered to be the most serious and most aggravated type of crime against humanity, and “the crime of crimes” among other international crimes.

  1. War crimes under International Criminal Law

The Statute of the International Criminal Court defines war crimes as, inter alia, “serious violations of the laws and customs applicable in international armed conflict” and “serious violations of the laws and customs applicable in an armed conflict not of an international character”. The Statutes of the International Criminal Tribunals for the former Yugoslavia and for Rwanda and of the Special Court for Sierra Leone and UNTAET Regulation No. 2000/15 for East Timor also provide jurisdiction over “serious” violations of international humanitarian law. In the Delalić case in 2001, in interpreting Article 3 of the Statute of the International Criminal Tribunal for the former Yugoslavia listing the violations of the laws or customs of war over which the Tribunal has jurisdiction, the Appeals Chamber stated that the expression “laws and customs of war” included all laws and customs of war in addition to those listed in the Article. The adjective “serious” in conjunction with “violations” is to be found in the military manuals and legislation of several States.

There is also practice which does not contain the adjective “serious” with respect to violations and which defines war crimes as any violation of the laws or customs of war. The military manuals and legislation of a number of States similarly do not require violations of international humanitarian law to be serious in order to amount to war crimes. However, most of this practice illustrates such violations in the form of lists of war crimes, typically referring to acts such as theft, wanton destruction, murder and ill-treatment, which indicates that these States in fact limit war crimes to the more serious violations of international humanitarian law.

List of war crimes

War crimes include the following serious violations of international humanitarian law:
(i) Grave breaches of the Geneva Conventions: In the case of an international armed conflict, any of the following acts committed against persons or property protected under the provisions of the relevant Geneva Convention:

  • willful killing;
  • torture or inhuman treatment, including biological experiments;
  • willfully causing great suffering or serious injury to body or health;
  • extensive destruction or appropriation of property, not justified by military necessity and carried out unlawfully and wantonly;
  • compelling a prisoner of war or other protected person to serve in the forces of a hostile Power;
  • willfully depriving a prisoner of war or other protected person of the rights of a fair and regular trial;
  • unlawful deportation or transfer;
  • unlawful confinement;
  • Taking of hostages.[5]

International Criminal Court 2002

Bodies of some of the hundreds of Vietnamese villagers who were killed by U.S. soldiers during the My Lai Massacre. On July 1, 2002, the International Criminal Court, a treaty-based court located in The Hague, came into being for the prosecution of war crimes committed on or after that date. Several nations, most notably the United States, China, Russia, and Israel, have criticized the court. The United States still participates as an observer. Article 12 of the Rome Statute provides jurisdiction over the citizens of non-contracting states in the event that they are accused of committing crimes in the territory of one of the state parties.

War crimes are defined in the statute that established the International Criminal Court, which includes:

  1. Grave breaches of the Geneva Conventions, such as:
    1. Willful killing, or causing great suffering or serious injury to body or health
    2. Torture or inhumane treatment
    3. Unlawful wanton destruction or appropriation of property
    4. Forcing a prisoner of war to serve in the forces of a hostile power
    5. Depriving a prisoner of war of a fair trial
    6. Unlawful deportation, confinement or transfer
    7. Taking hostages
  2. The following acts as part of an international conflict:
    1. Directing attacks against civilians
    2. Directing attacks against humanitarian workers or UN peacekeepers
    3. Killing a surrendered combatant
    4. Misusing a flag of truce
    5. Settlement of occupied territory
    6. Deportation of inhabitants of occupied territory
    7. Using poison weapons
    8. Using civilians as shields
    9. Using child soldiers
    10. Firing upon a Combat Medic with clear insignia.
  3. The following acts as part of a non-international conflict:
    1. Murder, cruel or degrading treatment and torture
    2. Directing attacks against civilians, humanitarian workers or UN peacekeepers
    3. Taking hostages
    4. Summary execution
    5. Pillage
    6. Rape, sexual slavery, forced prostitution or forced pregnancy

However the court only has jurisdiction over these crimes where they are “part of a plan or policy or as part of a large-scale commission of such crimes“.[6]

  1. Aggression under International Criminal Law

In 1998, at the Rome Conference that adopted the Rome Statute of the International Criminal Court (“the Statute”), the crime was included as one of the crimes within the jurisdiction of the Court and over which any State that becomes party to the Statute accepts the Court’s jurisdiction. However, participants to the Rome Conference could not agree on the definition of the crime nor on further conditions for the Court’s exercise of jurisdiction; the Statute did not allow the Court to exercise such jurisdiction until these outstanding issues were solved. At the 2010 Review Conference (“the Conference”), States Parties agreed by consensus to adopt resolution RC/Res.6 accepting the amendments to the Statute adding the definition of the crime and the conditions for the exercise of jurisdiction over this crime.

III. Conclusion

State cooperation with the Tribunals and the International Criminal Court departs in many important ways from State-to-State cooperation in criminal matters. The obligations vis-à-vis the international jurisdictions are more far-reaching since these jurisdictions are created by the international community to investigate and prosecute the most serious crimes of international concern. It ought not to be forgotten that the site of most international criminal law enforcement is not intended to be international courts. International tribunals have arisen because of the failure, or the absence, of national justice efforts, but they are not meant to replace them. One of the major roles which international judicial mechanisms have is the promotion of the more effective use of national criminal justice systems. The international courts and tribunals cannot deal with any but a handful of cases, and national systems must take a greater part in the prosecution of international crimes if international criminal law is to be effectively enforced.

The basic aims of those states that drafted the ICC Statute were “that the most serious crimes of concern to the international community as a whole must not go unpunished” and “to put an end to impunity for the perpetrators of these crimes.” These goals can be realized only to the extent that there is an attempt to bring to justice those who initiate and plan these crimes, as opposed to those who merely carry them out. In all probability, the ICC will depend on cooperation from states to secure the custody of persons wanted for trial, so that the question of the immunity of state officials from arrest and surrender is likely to prove essential to the work of the Court.

When applied to criminal cases alleging the commission of international crimes, the rules of international law concerning immunity must, and do, strike a fair balance between the need to ensure that undue interference with the functioning of foreign states is avoided and the need to ensure that those who perpetrate international crimes are punished.

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[2] Available at http://en.wikipedia.org/wiki/International_criminal_law, (last accessed on 07th march, 2020 at 11.pm)

[3] Available at http://www.un.org/en/globalissues/internationallaw/index.shtml, (last accessed on 07th march, 2020 at 11.pm)

[4] Available at http://www.justice.gov.tr/e-journal/pdf/Genocide_Crimes.pdf, (last accessed on 10th march, 2020 at 11.30 pm)

[5]Available at https://www.icrc.org/customary-ihl/eng/docs/v1_cha_chapter44_rule156, (last accessed on 10th march, 2020 at 11.45pm)

[6] Available at http://en.wikipedia.org/wiki/War_crime, (last accessed on 12th march, 2020 at 12:00 pm)

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